Aguirre v. Kendra

123 F. Supp. 3d 419, 2015 U.S. Dist. LEXIS 111828, 2015 WL 5011976
CourtDistrict Court, W.D. New York
DecidedAugust 24, 2015
DocketNo. 14-CV-6346L
StatusPublished
Cited by8 cases

This text of 123 F. Supp. 3d 419 (Aguirre v. Kendra) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aguirre v. Kendra, 123 F. Supp. 3d 419, 2015 U.S. Dist. LEXIS 111828, 2015 WL 5011976 (W.D.N.Y. 2015).

Opinion

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

INTRODUCTION

Plaintiff Hector Aguirre, appearing pro se, commenced this action under 42 U.S.C. § 1983. At the time of filing, Plaintiff was an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). Plaintiff alleges that defendants, who at all relevant times were employed by DOCCS, violated his due process rights guaranteed by the United States Constitution, in connection with plaintiffs confinement in a Special Housing Unit (“SHU”) for 132 days.

Defendants have filed a motion to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, De[421]*421fendants’ motion is denied, and plaintiff is granted leave to replead.

BACKGROUND

Plaintiffs claims arise out of disciplinary proceedings at Attica Correctional Facility, based on his receipt by mail on December 27, 2011 of a package containing marijuana. According to the complaint, it was not until November 5, 2013 (almost 23 months later), that defendant Investigator General Kendra filed an Inmate Misbehavior Report (“Report”). Plaintiff was found guilty and sentenced to 24 months’ confinement in the Special Housing Unit (“SHU”)..

The guilty finding was later overturned on administrative appeal, and plaintiffs guilty finding was expunged from his record. The reason stated for the reversal was “length of time since date of incident to date of report is excessive.” Complaint Ex. D. Plaintiff was returned to general population, after serving 132 days in SHU as a result of the charges. Complaint at 6.1

Based on those allegations, plaintiff claims that his due process rights were violated. He has sued four DOCCS employees, Investigator General Kendra, Lieutenant Skipper, Captain Loverde, and Superintendent Mark Bradt. Plaintiff seeks damages for the time that he spent in SHU. Defendants have moved to dismiss the complaint.

DISCUSSION

I. Official-Capacity Claims

The first ground for defendants’ motion is that the claims against defendants in their official capacities should be dismissed as barred by the Eleventh Amendment. Dkt. # 6-1 at 3. As plaintiff has pointed out in his response to defendants’ motion, the Court has already dismissed his official-capacity claims, in the order granting plaintiff in forma pauperis status. See Dkt. # 3 at 2-3; Dkt. # 8 at 1.

This aspect of defendants’ motion appears to be both boilerplate and irrelevant to the current status of this action, and it is denied as moot. In the future, counsel would be well advised to omit such unnecessary, superfluous arguments from their motion papers.

II. Due Process Claim

Defendants also contend that plaintiff has failed to state a constitutional claim, because he has not alleged facts showing that he had a constitutionally protected interest.

As the Court of Appeals for the Second Circuit has explained, a plaintiff asserting a procedural due process claim must establish “(1) the existence of a property or liberty interest that was deprived and (2) deprivation of that interest without due process.” Bryant v. New York State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012), cert. denied, — U.S. -, 133 S.Ct. 2022, 186 L.Ed.2d 885 (2013). In other words, it is not enough to show that some liberty interest is involved, or that the plaintiff was deprived of that interest, or that the plaintiff was deprived of due process in some general sense. The plaintiff must show that he was (i) deprived (2) of a protected liberty interest, and (3) that the deprivation occurred without due process of law. Id.; see also Bowens v. Smith, No. 11-cv-784, 2015 WL 236270, at *3 (N.D.N.Y. Jan. 16, 2015) (“In order to begin a due process analysis, the court determines whether plaintiff had a protected liberty interest in remaining free from the confinement that he challenges and [422]*422then determines whether the defendants deprived plaintiff of that liberty interest without due process”) (citing Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.2001)); Torres v. Mazzuca, 246 F.Supp.2d 334, 340 (S.D.N.Y.2003) (prisoner asserting a § 1983 claim for denial of due process at a disciplinary hearing must first identify a liberty interest protected by the Due Process Clause of which he was deprived,"and then show that he was deprived of that interest without due process of law).

The Second Circuit has held that “a prisoner has a liberty interest that is implicated by SHU confinement if it ‘imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” J.S. v. T’Kach, 714 F.3d 99, 106 (2d Cir.2013) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). See also Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004); Colon v. Howard, 215 F.3d 227, 230 (2d Cir.2000).

In addressing this matter, the court should consider, among other things, the duration and conditions of the plaintiffs confinement. Davis v. Barrett, 576 F.3d 129, 133 (2d Cir.2009). While there is no bright-line rule, in general, confinements between 101 and 305 days are considered to be of “intermediate” duration, and “require a district court to articulate specific findings of the conditions of the imposed confinement relative to ordinary prison' conditions'' before determining whether such confinement is atypical” and thus triggers Sandin. Reynoso v. Selsky, 292 Fed.Appx. 120, 123 (2d Cir.2008) (remanding for factfinding concerning 150-day SHU confinement).

In the case at bar, plaintiff has not alleged facts showing that the conditions of his SHU confinement were such as to impose an atypical and significant hardship on him, under the standards set forth above. Thus, plaintiff has not shown the existence of a constitutionally protected liberty interest. I will grant plaintiff an opportunity to amend the complaint to allege these matters.

In addition, plaintiff has not alleged a predicate due process violation. That the delay may have violated New York state regulations is not enough to state a federal claim' actionable under § 1983. See Vigliotti v. Selsky, No. 08-CV-875, 2014 WL 1451984 (W.D.N.Y. Apr. 14, 2014) (“a violation of a state ... regulation, in and of itself, does not give rise to liability under § 1983”). See also Loret v. Selsky, 595 F.Supp.2d 231, 233-34 (W.D.NY.2009) (outlining the “minimum procedural safeguards thát must be provided under the Constitution” to prisoners facing disciplinary charges).

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Bluebook (online)
123 F. Supp. 3d 419, 2015 U.S. Dist. LEXIS 111828, 2015 WL 5011976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aguirre-v-kendra-nywd-2015.